The Internet’s most hated man

Ars goes one-on-one with FunnyJunk’s lawyer, Charles Carreon.

Fraudulent fundraising?

Beyond potential trademark infringement against himself, Carreon says that the way that Inman has gone about his charity campaign, aka Operation BearLove, is in violation of California state law. The move has brought criticism from legal bloggers, including charges that Carreon is making it harder for people to complain online. If they do, creative lawyers can always find some way to file a lawsuit against them. But Carreon doesn't see it this way at all.

“There is no attack on anything like First Amendment speech,” he said. “There is no effort to alter a word of the campaign. It has taken its course, and I’m not seeking any damages for the insults to my mother. I am simply saying that I’m focusing my attention on what is an inappropriate way to raise a charity campaign.” (Carreon said in his lawsuit that he had contributed to the campaign, and that he supports both charities' activities).

He believes that both Inman and IndieGoGo are in violation of California Government Code Section 12599.6. As he describes it in his filing, the Act “requires all charitable organizations to ‘exercise and establish control’ over their own fundraising activities and over all fundraising activities conducted by others for their benefit." However, the California law in question does not even use the word “agents” or “others."

“That's why if your kids sell lemonade in order to donate the proceeds to save the pandas, the World Wildlife Fund doesn't have to come and proofread their signs and make sure that they aren't misstating the ingredients of the snickerdoodles or coercing the Jenkins kid up the block to buy seconds,” writes the law blog Popehat.

Carreon also argues that Inman and IndieGoGo should, under California law, be considered commercial fundraisers for charitable purposes, because they are receiving “compensation for their efforts.”

“Nine percent of the take isn’t compensation?” Carreon thundered when asked about this, referring to the amount IndieGoGo would receive if the total amount is not reached. (IndieGoGo’s fee actually falls to four percent when a given goal is reached, which has already happened in this case).

Because Inman initially asked for $20,000 and has since raised over $200,000—Inman has already made clear on the campaign’s site that he will donate the entire amount to charity, including two new target charities—Carreon believes him to be untrustworthy.

“It sounds like he stands to make $180,000,” Carreon said. “He’s the authorized agent of IndieGoGo. I know this shit is hard to put together. That’s why we hire lawyers, because we read the statute and we take the risk.” (“Inman's commitment after the fact is not evidence of his original intention," Carreon clarified later by e-mail).

“Inman's idea to add two more charities is another act that shows the risk of money being raised for one purpose to be diverted to another. For example, I raise money for an Israeli charity to pay for trips to the Holy Land, but then decide that half the money should go to Palestinian orphans, or more disturbingly, to Hezbollah, which also has a charity wing. It's one more reason why IndieGoGo should not contract with agents like Inman who do not know that ‘adding charities’ to a campaign is obviously ‘bait and switch’ false advertising.”

Operation BearLove has raised over $200,000 to date.

Speaking freely

As noted above, one of the biggest head-scratchers in the entire case is Carreon’s previous history of representing american-buddha.com, a website run by his wife (he contributed as well). The site makes some verytawdry and salacious satirical visual gags against various conservative commentators and members of the Bush Administration. When the site was taken down in 2006 over a pornographic photoshopped image involving newspaper columnist Kathleen Parker, Carreon sued the city of Ashland, Oregon (the city owned the network hosting the site). The suit came on the grounds that the city was infringing his freedom of speech. He lost in district court and again on appeal.

"The issue is one of first-impression, because whether a municipal Internet system subjects a city to First Amendment restrictions is, strictly speaking, a new one,” he wrote back in 2008. “On the other hand, it's just a replay of the old Jehovah's Witness cases, where an unpopular religion found its message blocked by restrictions on the use of loudspeakers and pamphleteering. American Buddha is a digital pamphleteer, entitled to the same protections as the works of the Founding Fathers, who wrote 'The Federalist Papers' pseudonymously, and circulated them secretly to avoid Royal prosecution. The Revolutionary War was, in large part, a war against censorship. And it's not over."

How could someone involved with such material get so bent out of shape by Matthew Inman's sometimes violent, sometimes crass imagery? (Carreon's court filing devotes a couple of pages to Inman's alleged depravity, including examples of his cartoons and even a piece of ASCII art involving a pterodactyl).

I asked Carreon how his own speech squares with the notice in the court filing where he states that it is his “practice” to engage in “tempered speech.” He responded by saying the two instances were wholly unrelated.

“Am I a politician?” he declared forcefully. “Did I declare war on Iraq? Did I deceive the Secretary of State that resulted in the death of millions of people? I do not think it is intemperate to characterize murderers as savagely as you can.”

That letter notes that FunnyJunk's entire business model could only work in the US if the company adhered to the Digital Millennium Copyright Act (DMCA) and gained the protection of its "safe harbor." The safe harbor allows sites like FunnyJunk to avoid any liability for copyright infringement so long as they take down user-uploaded content when notified that it infringes. FunnyJunk has long said that it does this, but Inman's lawyer wonders if the site is actually in compliance with a key DMCA rule: you need to have a "registered agent," somewhere for third parties to send their complaints.

"Without taking a position on the other issues," writes lawyer Venkat Balasubramani, "I’ll note simply that FunnyJunk does not appear to have a notice of designation on file with the Copyright Office. This alone would be enough to undermine any defense of immunity to claims of infringement that The Oatmeal (or third parties) may assert."

This was an issue that we noticed a year ago, and Carreon confirms its truth. He became FunnyJunk’s DMCA agent as of May 25, 2012 (after sending the wrong amount of money to the Copyright Office a few days earlier), just in time to send Inman a letter on June 2. Until that date, the site appears to have been ineligible for any DMCA "safe harbor" protection from infringement suits.

Still, Carreon says it doesn't matter now. "[FunnyJunk] now [has] an agent,” he said. “If someone wants to make something of the fact that they didn’t have an agent, there’s nothing to be made of it. There you go. It’s a fact. There’s no legal claim that can be made on it whatsoever. But you know, you always know that your adversary is scratching and having a problem when they’re looking at what we would call non-material, non-compliant stuff that would not be admissible as evidence.”

Solving the Internet's problems

What’s the endgame for Carreon? He seems to view this occasion, oddly, not so much as a chance to go after Inman, but rather as a “legal vehicle to reform the law of charitable giving on the Internet.” (If you didn't believe this was one of the Internet's big problems, you are not alone).

“I win by making the world a place where the law of charitable giving, wisely enacted over fifty years ago by the California legislature, will secure the rights of genuine charitable fundraisers to not have to compete with false advertising and unregistered charitable fundraisers who can take the money and vamoose, as so many have done,” he said.

For now, at least, it's a lonely quest.

Update: As for the original demand for $20,000, a reader points out that Carreon has already admitted he made a mistake sending it out. As Seattle's The Stranger put it two days ago:

Before demanding the $20,000, which was based on FunnyJunk's "estimate of advertising losses sustained due to the taint of being accused of engaging in willful copyright infringement," Carreon was told that all Oatmeal comics had been taken off the FunnyJunk site, even though they hadn't. "If I had known... no demand would have gone out," he says.

Update 2: Carreon wrote to Ars on Thursday afternoon: "You downplayed the problem of Internet charity fraud disingenuously, failing to note that the third link below, even though the first link below, about Tsunami charity fraud goes directly to the Washington Attorney General site. The problem is enormous, and minimizing the truth with a clever quip is not responsible, ethical journalism, but pandering to the mob: 'If you didn't believe this was one of the Internet's big problems, you are not alone).'"